NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 17 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT


WILLIAM SHROPSHIRE,                             No. 16-15214

             Petitioner-Appellant,              D.C. No. 3:14-cv-00118-VPC

 v.
                                                MEMORANDUM*
ISIDRO BACA and ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
         Respondents-Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                  Howard D. McKibben, District Judge, Presiding

                     Argued and Submitted October 19, 2017
                           San Francisco, California

Before: W. FLETCHER and TALLMAN, Circuit Judges, and HOYT,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36.3.
      **
            The Honorable Kenneth M. Hoyt, United States District Judge for the
Southern District of Texas, sitting by designation.
      William Shropshire appeals the district court’s dismissal of his petition for

writ of habeas corpus, challenging convictions for one count of kidnapping and

multiple counts of robbery with use of a deadly weapon.           The district court

dismissed the petition on the ground that it was barred by the Antiterrorism and

Effective Death Penalty Act’s (“AEDPA”) one-year statute of limitations. The

appellant presents two arguments on appeal: first, that he is entitled to equitable

tolling, and second, that he is actually innocent of the kidnapping charge.

      We review de novo a district court’s decision to dismiss a petition for writ of

habeas corpus under the AEDPA’s statute of limitations. Summers v. Schriro, 

, 712 (9th Cir. 2007); Spitsyn v. Moore, 

, 799 (9th Cir. 2003).

We have jurisdiction pursuant to 28 U.S.C. § 2254 and 28 U.S.C. § 1291.

      The appellant waived a state appeal and thereafter, in 2010 and 2013, filed

unsuccessful state writs of habeas corpus. The appellant’s federal petition for writ

of habeas corpus was filed February 2014, more than three years after his only

timely filed state petition.

      The AEDPA establishes a one-year limitations period for filing federal

habeas petitions. 28 U.S.C. § 2244(d)(1). The period runs from “the date on

which the [state] judgment [becomes] final by the conclusion of direct review or

the expiration of time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The

appellant concedes that his federal habeas petition was untimely, but he asserts that


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he qualifies for equitable tolling due to his inability to access state records and his

mental incompetence.

      The appellant is not entitled to equitable tolling due to his inability to obtain

trial records or medical records. During the period for which tolling is sought, the

appellant filed a motion to modify the judgment and two state habeas petitions.

Therefore, it cannot be said that the appellant’s lack of access to the state records

constitutes “an extraordinary circumstance” that made “it impossible to file a

petition on time.”     See Lott v. Mueller, 

, 924 (9th Cir. 2002)

(quotation omitted).

      The appellant is also not entitled to equitable tolling based on mental

incompetence. A petitioner seeking equitable tolling due to mental incompetence

must show “an inability to rationally or factually personally understand the need to

timely file, or a mental state rendering an inability personally to prepare a habeas

petition and effectuate its filing.” Orthel v. Yates, 

, 938 (9th Cir.

2015). The appellant was judged competent before he was sentenced in September

2009, and the record does not reflect any finding of incompetence after that time.

Furthermore, he filed several state petitions during the years after his sentencing,

indicating that he was capable of preparing and filing habeas petitions. It is,

therefore, not evident that mental incompetency rendered the appellant unable “to

prepare a habeas petition and effectuate its filing”. 

      The appellant also claims that he is actually innocent of the kidnapping

charge because the state cannot prove the “asportation” element of kidnapping with

regard to one of the victims. “[A]ctual innocence, if proved, serves as a gateway

through which a petitioner may pass whether the impediment is a procedural bar . .

. or . . . expiration of the statute of limitations.” McQuiggin v. Perkins, 

, 1928 (2013); see also Sawyer v. Whitley, 

, 339 (1992). The

appellant cannot access this “gateway” because the record before us does not

reveal new evidence in light of which “no juror, acting reasonably, would have

voted to find him guilty beyond a reasonable doubt.” See 

(quoting Schlup v. Delo, 

, 329 (1995).

      The kidnapping charge to which the appellant entered a plea of guilty was

one of eleven similar charges. Even if the appellant established that the asportation

element was not proved in the count to which he entered a plea, there are ten

potential robbery or kidnapping charges for which no proof of innocence has been

presented.   Therefore, the appellant has not demonstrated that he is actually

innocent of the crimes to which he pled guilty. 

argument, counsel for the appellant argued that our recent decision in

Gonzalez v. Sherman, No. 1556855, 

(9th Cir. Oct. 11, 2017),

extended the time to file a federal habeas petition. In Gonzalez, we held that the

AEDPA’s statute of limitations clock restarts when a state-court judgment is


                                          4                                   16-15214
amended. 

successfully had his judgment amended to reflect

credit for time served on November 4, 2010. Therefore, Gonzalez does not aid the

appellant’s equitable tolling claim because he did not file his federal habeas

petition within one year of that date. Accordingly, the appellant has failed to show

that he is entitled to equitable tolling or is actually innocent and thereby overcomes

the AEDPA’s one-year statute of limitations.

      The judgment of the district court is AFFIRMED.




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